[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
_____________________________U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 21, 2006
No. 05-13487
THOMAS K. KAHN
Non-Argument Calendar
CLERK
____________________________
D.C. Docket No. 03-00177-CV-1-MP-AK
PIERRE PICHETTE,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, Commissioner of
the Social Security Administration,
Defendant-Appellee.
____________________________
Appeal from the United States District Court
for the Northern District of Florida
_____________________________
(June 21, 2006)
Before EDMONDSON, Chief Judge, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Pierre Pichette appeals the district court’s order affirming the denial by the
Commissioner of Social Security of Pichette’s application for disability insurance
benefits, 42 U.S.C. § 405(g), and for supplemental security income, 42 U.S.C.
§ 1383(c)(3). No reversible error has been shown; we affirm.
“We review the Commissioner’s decision to determine if it is supported by
substantial evidence and based on proper legal standards.” Lewis v. Callahan, 125
F.3d 1436, 1439 (11th Cir. 1997). “Substantial evidence is more than a scintilla
and is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Id. at 1440. “Even if the evidence preponderates against
the [Commissioner]’s findings, we must affirm if the decision reached is supported
by substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990).
Pichette first argues that the administrative law judge (ALJ) erred by basing
his decision denying benefits, in part, on the unsigned psychological report of
Linda Abeles, Ph.D. The ALJ may have erred in considering this report, which
showed another person’s handwritten initials beside Dr. Abeles’s name. See 20
C.F.R. §§ 404.1519n(e), 416.919n(e) (requiring that consultative evaluation
reports “be personally reviewed and signed by the medical source who actually
performed the examination”). But this error was harmless. See Diorio v. Heckler,
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721 F.2d 726, 728 (11th Cir. 1983) (stating that remand not necessary where ALJ
commits harmless error in making erroneous statements of fact while applying
proper legal standard).
Our review of the record shows that Dr. Abeles’s report is cumulative to
other psychological evidence presented to the ALJ. Her assessment was that
Pichette’s current psychological condition would not hinder him from obtaining or
maintaining employment, that he appeared competent to manage his own money,
and that his prognosis for future success in the workplace was fair to good. But
the ALJ also relied on the Mental Residual Functional Capacity Assessment
(MRFCA) of Wayne Conger, Ph.D., who concluded that, despite Pichette’s
memory problems caused by his cognitive deficits, he mentally was capable of
performing simple, repetitive tasks on a sustained basis. In addition, the August
2000 report of Leslie Rothman, Ph.D., showed that Pichette adequately and
independently could perform daily living activities. Although Dr. Rothman
opined that Pichette suffered from an anxiety disorder, Dr. Rothman recommended
that cognitive psychotherapy and a reduction in caffeine intake would help
Pichette’s emotional distress. The ALJ, further, discounted Pichette’s own
statements about his impairments and his inability to work in the light of all the
medical evidence; and Pichette does not challenge this determination. Even
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leaving out Dr. Abeles’s report, substantial evidence of Pichette’s mental
condition supports the ALJ’s determination.
Pichette also argues that the Appeals Council erred by “ignoring” alleged
additional, significant evidence of his disability: an MRFCA completed by Dr.
Rothman in July 2002. Dr. Rothman’s July 2002 MRFCA was not provided to the
ALJ, but it was submitted to the Appeals Council. Pichette contends that, after the
exclusion of Dr. Abeles’s report, Dr. Rothman’s MRFCA is the only record
evidence of Pichette’s mental health.
We review de novo the district court’s determination on whether remand to
the Commissioner is necessary based on new evidence. Vega v. Comm’r of Soc.
Sec., 265 F.3d 1214, 1218 (11th Cir. 2001). To succeed on a claim that remand is
appropriate, Pichette would have had to show (1) that “new, noncumulative
evidence exists,” (2) that “the evidence is material such that a reasonable
possibility exists that the new evidence would change the administrative result,”
and (3) that “good cause exists for the applicant’s failure to submit the evidence at
the appropriate administrative level.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th
Cir. 1998).
We doubt that Dr. Rothman’s July 2002 MRFCA is “new evidence” or that
it is “material.” It is based on Dr. Rothman’s one-hour August 2000 examination
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of Pichette: this examination and its accompanying report were documented in the
proceedings before the ALJ. The July 2002 assessment contained new
conclusions1 based on evidence that the ALJ had considered. And Dr. Rothman
did not explain why he came to these conclusions nearly two years after the
examination. But regardless, Pichette has not attempted to show good cause for
his failure to submit Dr. Rothman’s MRFCA in the proceedings before the ALJ.
The MRFCA is dated 17 July 2002, but the ALJ did not render his decision until
November 2002. And Pichette’s lawyer did not submit this evidence to the
Appeals Council until 18 July 2003.2 Pichette gives no reason for the tardiness of
this submission. The Appeals Council committed no error in refusing to remand
this case to the ALJ for consideration of Dr. Rothman’s July 2002 MRFCA.
AFFIRMED.
1
The 2002 MRFCA stated that Pichette was extremely limited in his ability (1) to understand,
remember, and carry out detailed instructions; (2) to work a regular schedule due to his frequent need
for long rest periods caused by his psychological condition; and (3) to set realistic goals or make
plans independently of others.
2
Although Pichette’s lawyer’s letter to the Appeals Council about the MRFCA is dated 18 July
2001, this date appears to be a typographical error because (1) the letter shows a fax date to the
Appeals Council of 18 July 2003, and (2) the MRFCA was not completed until 2002.
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